[WSBAPT] Omitted Child Issue and Potential Escheat

[David Faber]

Thank you, all. This was very helpful to my thinking.

Best,
David J. Faber
Faber Feinson PLLC
800 Polk Street, Suite B
Port Townsend, WA 98368
(360) 379-4110

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On Tue, May 20, 2025 at 6:21 PM Joshua McKarcher <josh at mckarcherlaw.com>
wrote:

> This email is worth precisely what you’re paying for it, but if it helps,
> “great.”
>
>
>
> IF Washington common law or judicial opinion provides similar rules to
> what the uniform probate code codifies, then this sounds like a mistake of
> fact, mistake of law, and mistakes of other things -- and thus a
> fundamentally invalid will not eligible for probate (at least as to
> property dispositions).
>
>
>
> I’ve only ever (and recently) had this issue in Idaho, admittedly, which
> is a uniform probate code state. And, under Idaho law, ambiguity in the
> will would permit extrinsic evidence of testator intent.
>
>
>
> In Washington statute, I “think” the only provision on point above is
> maybe RCW 11.12.230 re testator intent, to the degree you find case law
> applying it within some judge-defined bounds.
>
>
>
> But, “gosh darn,” it sure seems like you’d need to have some of the other
> above law available to you even to GET TO testator intent as to meaning –
> such as an ambiguity on the face of the document that brings in extrinsic
> evidence?
>
>
>
> I do not litigate these matters, honestly, so my recent Idaho excursion
> was fun but provided an acceptable (and lawful!) outcome after application
> of all these principles. So “it worked.”
>
>
>
> You have some research and dot connecting to do. But perhaps the PR could
> apply for letters of administration in intestacy, without priority of
> appointment, submit the will for full disclosure, assert that it is not
> provable as a valid will, provide notice to both heirs, and let them argue
> otherwise or seek appointment if they wish to.
>
>
>
> If nobody objects, they split the estate 50/50. If disabled child wants to
> argue the will disinherits unhoused child but somehow does not disinherit
> disabled child, well, “go right ahead.”
>
>
>
> I suppose the court can decide if the Attorney General should have notice
> and a chance at arguing escheat . . . if he would? But I think once you dig
> further you’ll find that is plainly disfavored unless there are NO other
> heirs at all.
>
>
>
> Alternatively, depending upon the common and judicial law you find, I
> suppose perhaps the will could be probated as making a valid appointment of
> PR (if it does even that properly) but INTERPRETED as having dispositive
> provisions that are invalid “at square one” as classic mistakes of fact
> *and* law, if Washington has those theories.
>
>
>
> This alternative could get the PR appointed with a will that does nothing
> but provide appointment and some administrative provisions (maybe no bond?
> Maybe non-intervention powers?), but that results in intestacy – which may
> just be what public policy (and just our fundamental law of wills) requires
> in this situation.
>
>
>
> Litigators with actual knowledge dissect me in response! I shall learn
> from you! 😉
>
>
>
> Best, Josh
>
>
>
> Joshua D. McKarcher
>
> McKarcher Law PLLC
>
> 537 6th Street
>
> Clarkston, WA 99403
>
> (509) 758-3345
>
> (509) 758-3314 (fax)
>
> josh at mckarcherlaw.com
>
> www.mckarcherlaw.com
>
>
>
>
>
>
>
>
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *David Faber
> *Sent:* Tuesday, May 20, 2025 4:36 PM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* [WSBAPT] Omitted Child Issue and Potential Escheat
>
>
>
> Good afternoon list,
>
>
>
> I have a doozy...
>
>
>
> Decedent, while dying of cancer, wrote her Will on a form given to her by
> a hospice worker/nurse. Decedent had two children: (A), who is a homeless
> drug addict, and (B), who is developmentally disabled, is dependent upon
> public assistance, and lives in a group home. Decedent's Will contains no
> reference to child A, describes child B as her "only family", appoints
> Decedent's sister as Personal Representative, contains no specific gifts,
> and leaves her residuary estate to "No one". According to the Decedent's
> sister (my prospective client), the hospice worker instructed the Decedent
> on how to fill out her Will with the stated goal of allowing the sister (as
> Personal Representative) to distribute the entire estate into a Special
> Needs Trust that the sister could write after the Decedent died. Lastly,
> the net estate is probably worth about $380,000.00. Setting aside the
> apparent brazen violation of RCW 2.48.180, I'm now trying to figure out how
> to proceed, or if it makes any sense at all to proceed to probating the
> Will.
>
>
>
> Reviewing the Omitted Child statute (RCW 11.12.091), it appears to *only *apply
> to a child born or adopted *after *the date of the Will and therefore A
> doesn't have an omitted child claim (correct?). But then that means the
> Will leaves the estate to "no one". My worry is that this effectively means
> that the estate escheats. Has anyone encountered a situation like this or
> have any thoughts that could result in the estate going to A and B as
> intestate heirs? The next step after that will be figuring out a
> self-settled special needs trust for B, but I'll cross that bridge if we
> can find a way to even come to it...
>
>
>
> Best,
>
> David J. Faber
>
> Faber Feinson PLLC
>
> 800 Polk Street, Suite B
>
> Port Townsend, WA 98368
> (360) 379-4110
>
>
>
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